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|Case Number:||Civil Appeal 29 of 1996|
|Parties:||John Karinga Kimanga v Samuel Kamau Kamunge & Joseph Njogu Kamunge|
|Date Delivered:||18 Oct 1996|
|Court:||Court of Appeal at Nyeri|
|Judge(s):||Akilano Molade Akiwumi, Amrittal Bhagwanji Shah, Abdulrasul Ahmed Lakha|
|Citation:||John Karinga Kimanga v Samuel Kamau Kamunge & another  eKLR|
|Case History:||(Appeal from the judgment and order of the High Court of Kenya at Nyeri (Tunoi,J.) dated 23rd February, 1993 IN H. C. C. CASE NO. 154 OF 1990)|
|History Docket No:||H. C. C. CASE NO. 154 OF 1990)|
|History Judges:||Philip Kiptoo Tunoi|
|History Advocates:||Both Parties Represented|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
IN THE COURT OF APPEAL
(CORAM: AKIWUMI, SHAH, AND LAKHA, JJ.A.)
CIVIL APPEAL NO. 29 OF 1996
JOHN KARINGA KIMANGA…………………..…...………APPELLANT
SAMUEL KAMAU KAMUNGE………………..…….. 1ST RESPONDENT
JOSEPH NJOGU KAMUNGE………………......….. 2ND RESPONDENT
(Appeal from the judgment and order of the High Court of Kenya at Nyeri (Tunoi,J.) dated 23rd February, 1993
H. C. C. CASE NO. 154 OF 1990)
JUDGEMENT OF THE COURT
This is an appeal by the unsuccessful plaintiff against the decree of the superior court (Tunoi, J, as he then was) delivered on February 23, 1993 whereby he struck out the plaintiff’s suit on a so called preliminary point of law that it was res judicata, by an Originating Summons filed on December 5, 1990 the plaintiff sought orders, inter alia, for the register concerning three Land Parcels Number MUTIRA/KAGUYU/1266MUTIRA/KAGUYU/1267andMUTIRA/KAGUYU/1268 to be rectified to its original title Number MUTIRA/KAGUYU/449 and for the defendants’ name to be deleted from the three Land Parcels on the ground of adverse possession. At the hearing of the summons, the defendant’s advocate, without any notice whatsoever, argued that the suit was res Judicata and the learned judge held that there were three suits prior to the instant one where the matter raised in the summons was substantially in issue and that the plaintiff could not therefor raise the issue of adverse possession.
At the hearing of the appeal the respondents’ advocate conceded and, in our opinion rightly, that two of the three prior suits did not support a finding of res judicata. It follows that the learned judge was, with great respect, in error in basing his judgment on those two prior suits. As far as the Embu R.M.C.C. 109 of 1983 in which the plaintiff was sued for eviction it was held that he had no interest in the land which belonged to the first respondent.
There is no finding if the plaintiff was in fact in possession of the land in question in that case. The ascertainment of that fact was essential to the finding of the learned judge that the present suit was barred but there was no such finding and, in the absence of thorough investigation, there could be none. There was, therefore, no material before the learned judge on which a finding as to possession could be properly made.
Accordingly, in our judgement, the decision of the learned judge was, with respect, made in error. The issue before the superior court clearly required a full hearing and we reiterate that the practice of raising points, which should be argued in the normal matter, by way of preliminary point of law does nothing but unnecessarily increase costs and, on occasion, confuse the issues as it certainly did in this case. A preliminary point cannot be raised if any fact has to be ascertained.
For the reasons above stated, the appeal is allowed with cost here and in the court below and the case is remitted to the superior court for hearing on merits.
Dated and delivered at Nyeri this 18th day of October,1996.
A. M. AKIWUMI
JUDGE OF APPEAL
A. B. SHAH
JUDGE OF APPEAL
A. A. LAKHA
JUDGE OF APPEAL